section 83.05(6)

INTRODUCTION AND BRIEF DESCRIPTION

This section outlines the process for a judge to examine security and criminal intelligence reports, provide the applicant with a summary of the information, allow the applicant to be heard, and determine whether the decision is reasonable in regards to listing an entity as a security threat.

SECTION WORDING

83.05(6) When an application is made under subsection (5), the judge shall, without delay (a) examine, in private, any security or criminal intelligence reports considered in listing the applicant and hear any other evidence or information that may be presented by or on behalf of the Minister and may, at his or her request, hear all or part of that evidence or information in the absence of the applicant and any counsel representing the applicant, if the judge is of the opinion that the disclosure of the information would injure national security or endanger the safety of any person; (b) provide the applicant with a statement summarizing the information available to the judge so as to enable the applicant to be reasonably informed of the reasons for the decision, without disclosing any information the disclosure of which would, in the judges opinion, injure national security or endanger the safety of any person; (c) provide the applicant with a reasonable opportunity to be heard; and (d) determine whether the decision is reasonable on the basis of the information available to the judge and, if found not to be reasonable, order that the applicant no longer be a listed entity.

EXPLANATION

Section 83.05(6) of the Criminal Code of Canada pertains to the process of reviewing and possibly removing an individual or entity from the list of designated terrorist organizations. This section outlines the procedures that must be followed in order to ensure the fair and impartial examination of any request for removal from the list. The section specifies that a judge must examine any security or criminal intelligence reports that were considered in listing the applicant, and may hear additional evidence or information presented by the Minister. If the judge believes that disclosing certain information could harm national security or endanger individuals, they may choose to hear that evidence or information in private, without the presence of the applicant or their counsel. The judge must then provide the applicant with a summary of the available information, without revealing any details that could be detrimental to national security or personal safety. The applicant must also be given a reasonable opportunity to present their case and be heard. Finally, the judge must determine whether the decision to list the individual or entity as a designated terrorist organization is reasonable based on the information available. Overall, this section serves to ensure that any decisions regarding the listing and removal of designated terrorist organizations are made in a fair and transparent manner, while still prioritizing the safety and security of individuals and the nation as a whole.

COMMENTARY

Section 83.05(6) of the Criminal Code of Canada outlines the procedure for seeking judicial review of the listing of an individual or entity as a terrorist under the criminal laws of Canada. This section is critical in protecting civil liberties and ensuring that the government does not abuse its power in designating individuals as a national security threat. The provision specifies that when a person or entity applies under subsection (5), a judge must examine any security or criminal intelligence report considered in listing the applicant and may hear any additional evidence presented by the Minister. The judge can request that this evidence be heard in private if there is a risk of injuring national security or endangering the safety of any person. This ensures that sensitive information is protected, while still allowing the judge to make an informed decision. The judge must provide the applicant with a summary of available information to enable them to be reasonably informed of the reasons for the decision. However, the judge cannot disclose any information that would endanger national security or individual safety. This safeguard balances the need to protect sensitive information with the rights of the applicant to understand the basis for their listing. The applicant has the right to be heard and must be given a reasonable opportunity to do so. This provision ensures that the judge hears the applicant's perspective and considers any relevant information presented. Upon review, the judge must determine the reasonableness of the decision based on the available information. If the listing is deemed unreasonable, the applicant will no longer be considered a listed entity. This provision ensures that the government's power to designate individuals as national security threats is properly scrutinized by an independent, neutral third party. Section 83.05(6) provides several legal safeguards to ensure that the government does not abuse its power in listing individuals or entities as national security risks. This protects individual rights and freedoms while also promoting public safety. Designating someone as a terrorist without proper evidence or due process can have severe consequences for their reputation, livelihood, and freedom. This provision promotes transparency, accountability, and fairness in deciding who is labelled a national security threat.

STRATEGY

Section 83.05(6) of the Criminal Code of Canada presents a number of strategic considerations when dealing with applications to de-list individuals or groups who have been designated as terrorists or terrorist entities. These considerations include: 1. Understanding the Evidence: The judge can examine any security or criminal intelligence reports considered in listing the applicant and hear any other evidence or information that may be presented by or on behalf of the Minister. As such, it is important to understand what evidence or intelligence led to the listing in order to formulate an effective strategy to counter it. 2. Balancing Information Disclosure: There is a delicate balance between the need to protect national security or the safety of individuals and ensuring due process for those seeking to be de-listed. Lawyers representing the applicant need to strategize around how to access as much information as possible while not compromising national security or individuals' safety. 3. Crafting a Compelling Narrative: In order to be successful in the de-listing application, lawyers for the applicant will need to craft a clear and compelling narrative that will persuade the judge to agree that the basis for the listing is not reasonable. This narrative may involve arguments regarding the reliability of the evidence, the context in which events occurred, or any number of other factors. 4. Exploiting Procedural Advantages: The judge must provide the applicant with a reasonable opportunity to be heard. This may involve filing affidavits, calling expert witnesses, or other procedural advantages that can be used to put forward the applicant's case in the most persuasive way possible. 5. Considering Appeals: In the event that a de-listing application is unsuccessful, lawyers for the applicant will need to consider whether to appeal the decision and, if so, how best to do so. This may involve crafting different arguments or pursuing different procedural avenues in order to increase the chances of success. 6. Leveraging Public Opinion: While the judge's decision will be based solely on the evidence presented in court, public opinion can play a role in influencing the judge's perception of the case. Lawyers for the applicant may wish to consider how to leverage public opinion in order to increase the chances of success in the de-listing application. Overall, the strategic considerations involved in dealing with Section 83.05(6) of the Criminal Code of Canada are complex and multifaceted. Lawyers for applicants seeking to be de-listed must consider a range of factors in order to formulate the most effective strategy possible. Some strategies that could be employed include gaining a deep understanding of the evidence, crafting a compelling narrative, exploiting procedural advantages, and leveraging public opinion. By carefully considering these factors, lawyers can increase the chances of success in de-listing applications.

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